Coming soon: Supreme Court on the Voting Rights Act

The U.S. Supreme Court will get to hear just how much things have changed in the South during argument on Feb.27 in Shelby County v. Holder[1], the challenge to Section 5 of the Voting Rights Act.

That’s the section requiring certain states and jurisdictions — including 40 counties in N.C.[2] — to get U.S. Department of Justice preclearance of changes to voting practices.

(As previously reported here[3], a case out of N.C., Nix v. Holder[4], had also been pending for certiorari by the Court, but was dismissed as moot[5] on the grounds that the Justice Department had withdrawn its objections to the Kinston N.C. voting changes at issue there.)

If the views expressed by Chief Justice John Roberts four years ago — when the Court last considered the issue in Northwest Austin Municipal Utility District Number One v. Holder[6] — are telling, the Court heads into the argument predisposed to dispensing with Section 5 as outdated. The court in that case did not expressly rule on the viability of Section 5, finding instead on narrow grounds that the Austin, Tex. district challenging the constitutionality of the law might be eligible to “bail out” from being covered. But Roberts nonetheless expressed his skepticism about the continued need for Section 5:

“Things have changed in the South,” he said.“The statute’s coverage formula is based on data that is now more than 35 years old,” he added, “and there is considerable evidence that it fails to account for current political conditions.”

But a story[7] in yesterday’s New York Times reminds us that Section 5 is still doing work in the South.

Jerome Gray is a 74-year-old black man who has voted in every election since 1974 in Evergreen, Ala., 70 miles south of Selma. Last summer, he was kicked off the voting rolls by a clerk who had improperly culled the list based on utility records. But then a three-judge panel in federal court in Mobile barred the city from using the new voting list, invoking Section 5:

The court in Mobile this month said the case before it, concerning Evergreen, was simple: because the city had not obtained preclearance from federal authorities, it could not revise its voting list using utility records. Nor could it use a municipal redistricting plan enacted by the City Council that had concentrated black voters, who are in the majority, into just two of the five districts, limiting black voting power.